Nand Kumar & Others v. State of Rajasthan

Judgment

IHI Pr•blb. ~tat• of U. P. DasJ. IHI SUPREME COURT REPOR'l'S [1963] ·the production of a blood stained weapon. We are unable to agree. The ciroumsta.ntla.I cha.in in that case did not depend merely on the production of the gandasa, but on other circumstance a.e well. The Court held in that case that the oiroumsta.ntial oha.in was complete a.nd the decision did not prooeed merely on the production of a blood stained weapon. For the reasons given above we would allow the appeal and set a.side the conviction and eentenoe pa11eed against the appellant. The appellant must now be released forthwith. A.ppeal allowed. NAND KlJMAR & OTHERS ti. STATE OF RAJASTHAN (K. C. DAS GUPTA. and J. R. MUDHOLKA.B, JJ.) Criminal Trial- Retraclld can/~ Oorroboralionnlfkiencr. The appellants were convicted under 1. 302 Indian Penl Code and also s. 377 and s. 395 of the Indian Penal Code.

The Trial Court and the High Court had based the Convict ions on the retracted confessions of each of the 6nt three appellants supported by other circumstances in evidence and o circumstantial and other evidence in the case of the four!• appellant. On special leave it was contended that the con fessions of the first three appellants were not voluntary and even if voluntarily they were not suff'iclently corroborated by other circnmstances and that the conviction of the fourth appellant was not based on sufficient evidence. ' Held, 1hat what is sufl'icient corroboration for this purpose has to be decided in each case on Its own facts and CIJ'Cumstances.

It may, however, be generally stated that where the prosecution by the production of reliable evidence which is indepcadent of the confaaion and which i1 alto not lainted S.C.R. evidence like the evidence of an accomplice or the evidence of a co-accused, establishes the truth of certain parts of the account given in the confession and these parts are so integrally connected with other parts of the accmed's confession, that a prudent judge of facts would think it reasonable to believe, in view of the established truth of these parts, that what the accused has stated in the confession as regards his own participation in the crime is also true, that issufficient corroboration. More than this-is not needed; less than this is ordinarily insufficient. Held, further, that in the case of the first three appellants there was sufficient corroboration and that there was sufficient evidence in the ca•e of the fourth appellant. CRIMINAL APFELLATE JuruSDICTION: Criminal Appeal No. 181 of 1961.

Appeal by special leave from the judgment and order dated October 14, J 961, of the Rajasthan High Court in D. B. Cr. As. Nos. 263, 264, 278 and 280 to 282 and D. B. Cr. (Death Sentence and confirmation) Case No. 5 of 19Jl. 0. 0. Chatterjee, Renu Ohatterjee and 8. N. M ukhe,rjee, for the appellants. .4. 8. R. Chari, Kan Singh and P. D. Me:non, for the respondent. 1962. May 3. The following Judgment of the Court was delivered by DAS GuPTA, J.-On June 4, 1960 eight boys (1) Munna son of Manohar Lal; (2) Ram Prakash son of Ram Baboo; (3) Laxrni son of Vidhya Ram; (41 Pooran sou of Guiab Chand; (5) Kedar son of Ram Kumar; (6) Mohan son of Banke Lal; 17) Buresh son of Chandra Shekhar and ( b) Jagdish son of Mitthan Lal, all of Dholpur · City went to the temple of Mange.I Bharti for a picnic. None of them returned home. On the morning of June 6, all these boys were found dead near a well in Gundarai forest.

Each of the bodies bore numerous injuries, which according to the evjdenoe of Nan4 'Kumar Bio.I# qf Ra_.'a1lllao Daa Gupla .J. 1HI NaNl Kum•' St9'4 •f ll•.;•s'i.on SUPREME OOUR!' REPORTS (1963) doctor, who held the post mortem examination, caused the deaths. Seven of the bodies were found naked; only the dead body of Munna had clothes on. The hands of each were tied from behind with ribbons of thdr trournrs and their mouths were found gagged. Watches and ringa, buttons and currency nows, which some of these boys had with them had disappeared. The four appellants, viz., Nand Kumar, Brij Kishore, alias Kalua, Lskhan and .Murari along with one Jagdish were all convicted for the murder of these eight boys under s. 302 of the Indian Penal Code and were all sentenced to death. All of them were also convicted by the additional SeBBions Judge under s. 377 of the Indian Penal Code and s. 395, Indian Penal Code. The conviction of these four appellants under s.

302 was confirmed by the Hil(h Court of Re.jasthan and the sentences of death passed on Nand Kumar, Kalua and Lakhan were also confirmed. The High Court reduced the sentence on Murari to one of imprisonment for life. The conviction of all the appellants under s. ::195 of the Indian Penal Code and the sentences passed thereunder were also confirmed. The present appeal is by special leave granted by thia Court. The prosecution OASe is that when the eight boys were at Mangal Bharti temple on June 4, 1960 these four appellants and Jagdish joined them there. In the evening before they all left the temple, these ·appellants took Munna·and his seven companions one by one into a narrow lane behind the temple and robbed them of their belongings and valueable by force. All the 13 then left the temple together but instead of returning to Dholpur City, the appellants took the boys to the Gnndarai forest. It is aaid that before the appellant. j SUPREME OOUR'l'

REPORTB took the boys to Gundarai they had agreed among themselves to murder them. They all waited near a pilla.r till about 9-30 p.m. after which while Jagdish and Murari remained near the b:>ys to keep watch over them - Jagdish being armed with a. gun - first of. all Munna was ·oalled away from the other boys and killed by the other tb,ree, viz., Nand Kumar, Kalua and Lakhan. The other ileven were also ta.ken away one by one and killed by these three. For these killings· they used a knife which belonged to Murari and which Murari had brought with him on that day. After all the eight boys had been killed the booty was distributed among these five. Nand Kumar tOQk in his she.re an agfa camera which had been taken from Munno. and also Munna's wrist watch; Lakhan got a wrist watoh and a ring which had belonged to Ram Prakash; Kalua's share was a wrist watch belonging to Laxmi Chand and also a ring which belonged to him.

Murari got four .bottons and some money in cash and Jagdish also got some buttons and oash. The relatives of the boys had become anxious when the boys did not return on the night of Juue 4. Information ' was received from Puran, also of Dholpur City, who had also gone to the Mange.I Bharti on that day that he had seen the eight boys and also Nand Kumar, Kalua, -Jagdish :and Murari together at the Mange.I Bharti. Inquiries were then made a.t the houses of these five but they were all found absent. -On the following morning, i.e., the 5th June, .1960 at 6 a.m .. Shiv Na.rain, the brother of Munna lodged _ i,nformation with the Kotwali police Dholpur a.bout the disappearance of these boys. He added hie euspioiOn that ~hese boys might have fallen into the hands of_ da.ooite belonging to the Panna daooit's gang and kidnapped by .them. on·· the same day at about 10 p.m.. Bha.nwar Singh, the Circle Inspector of IHI Nana K,,,,.., State of RQjMJ/ran Daa Gu;1a J .• J(a"d Kumtif' s..,.

"/ Raj..Uoan D s C.,,.. J. SUPREME COURT REl'ORTS (1983] Dholpur sucCPPded in contacting these appellants. Ultimately i.11 tho five made statoments which wer" recorded, giving information about their hav· ing kept the articlee taken from somtJ of lhe boys. At about 4 a.m. on June 6, 1960, lhe Circle Inspec· tor accompanied hy the Deputy Superintendent of Police left for Gunda.rni foreet in a polioii jeep along with t.htJ appellant Nand Kumar and some other persons. Nand Kumar led the pulice to the top of a sma II hill and pointed out the five cycles of Munna and his companions lying at one spot and tho dead bodies of the eight boys lying at different places in the vicinit,I' of the hill in the jungl11. He also took out a knife, Ex- J 8, from a bush near one of the dead bodies. Then Nand Kumar went to his house with the police and there pointed out a camPra and a wrist watrh which had fallen to his •hare. He also brought out certain blood-stained clothes.

After this the appellant Mura.ri was taken by the police to his house and he brought out a gold ring with the name of R.P. GJpti. inscribed in enamel, a wriHt watch belonging to H. P. Gupta deceaaui and some blood-stained clothed. !'he polioo then took Mura.ri to his house where Mura.ri brought out some gold butt.one and currency noto8. Then Kalua. took the police to his house and brought out a wrist watch and a. ring inscribed with the name of S. K. Gupta a.nd also some blood stained clotheH. According to the prosecution three of these appellants, viz., Nand Kumar, Mura.ri and Kalua. ma.de confessions before the Sub-Divisional Magistrate which were recorded by the Ma.gistra.te-Nand Kumar on the 14th June, Kalua on the 15th June and Murari on the 16th Jiine. A statement of Lakhan waa also recorded by the Magistrate on the 15th Jme, 1960. All t.llA a.ccus1id pleaded not guilty.

They denied that they had made any statement at all before S.C.R. the Magistrate and also rlenied the reoovery of any artioles .from their houses. The conviction of ea.ch. of the three appellants, Nand Kumar, Kalua a'nd l\:lurari on the charge of murder was based by the Tl'ia l Co1irt and th<;i High Court on the confession said to have been made by him taken with the circumstances which the Courts below considered sufficient corroboration to established the truth of what was stated in the confession. On behalf of each of these appellants it has been contendeJ before us that the confession was not voluntary and was not admissible in evidence, and secondly, that .there was not sufficient corroboration to establish the truth of the confession.

On behalf of Naud Kumar an additional plea was pressed that he mado no confessional statement at all before the Magistrate anrl the document which is now produced as record of his confession·~! statement was written up in his absence on paµers on which Nand Kumar has been made to put his signature. The argument• of the learned Counsel, so far as we can understand it was that tho jail . register entry showing l.:25 as the time when Nand Kumar was brought back to the jail on the 14th June 1960 was originally 10.25 but had been dishonestly altered to 1.25 by erasing the zero. Proceeding on the basis that 10.25 was the time noted the learned Counsel argues that this shows that Nand Kumar was not ... before the Magistrate from 10.30 onwards. when according to the record of the confession,· Ex-62, the Magistrate was recording his co~fesshm. In the first place we do not find any reasonable ground for the thinking that the entry originally mad~ was 10.25.

As the entry stands, it is l.25 and there is no evidence, circumstantial or otherwise to indicate that it was not Bv all along. Even supposing it was originally 10.25 a1ld t.hen. altered to 1.25 t.he only reasonable conclusion would be, if the Magistrate's pwn ·evidence on the presence of the aooused before I91i2 JVand EU11Ulr State af Raj'"'""" IHI J(.,,j xu ..... r . ~-., BoJaol/>t111 Dal Gll#fa J. SUPREME OOURT REPORTS fl963] him is ta.ken into consideration, that somebody had made a. mista.ke in ma.king the entry and then corrected it to l.~5. We agree with the High Court that there is absolutely no reason to about the tE!Stimony of t.he Magistrate on this point and tliere can be no possible doubt whatsoever that the record Ex-P-62 contains what was stated by the aooueed Nand Kumar before the Magistrate on June 14, 1960. As regards ea.ch of these confessions, the learned Counsel ha.s urged, as already, indicated, that it was not voluntary.

Three grounds were urged in support of the oont.ention. They a.re, (I) that there wa.s a. rlela.y of a.bout a. week or more in sending the accused to the Magistrate for recording the confessions; (2) that Circle Inspector Pa.res Singh visited the Judicial J..ck up, where these confossing accused had been kept on the 13th June; and (3) that the confessing aocnsed had been kept in solitary oells. As regards the first ground it does not appear that any enquiry was made from the Investigating officer as to why he did not send up the accused for recording his confession earlier. But, if, a.s is suggested by the learned Counsel, the accused persons were ready to make their conf~88iOPn I statements before the Magistrate a.s early as the 6th June, it ia not clear to us what the police stood to gain by delaying the recording of these confe88ions.

On the • contrary, it would BP.em natural for the police to hurry up with the recording of the confe;;sions lest on second thoughts the aeoused might refuse to mnke the ~ta.temPnt. In considering the visit of Paras Singh to the judicial lock-up on the 13th June we have to remember that though Paras Singh wa.s not examined as a witness by the prosecution the prosecution did offer to examine him when in the course of the argument a grievanoe wae sought to l>e made b7 the defence of '"j. 2 s.c.&. snob non-examination. The Sessions Judge was prepared. to examine him as a Court witness bnt the defence objected to it. It is not open, there· fore, to the Dflfenoe Counsel now to complain that Paras Singh was not examined. It is not disputed that Paras Singh did visit the judicial look-up on the 13th June.

From the petition on which the order permitting him to visit the jail was made, it is reasonable t.o think, how- - ever, that this visit was made for steps in the investigation in some other case having no connection with ~he present accused. No doubt, as regards the voluntary nature of the confessions, therefore, arises from this visit of Paras Singh to the judicial lock-up on the 13th June. Nor can any conclusion be reasonably based on this point from the fact that the accused persons were kept in solitary cells. Such keeping in soli tary 06lis is often oonsidereil prudent by the jail authorities for the safety of the confessing accused themselves. It is true that by being kept in the solitary cells an accused is kept away from the influence of other under-trial prisoners who might try to induce them to resile them· from the CQnfession, but it is no ground for thinking that when a particular accused had· been kept is a solitary cell the confession made by him was not ~ voluntary .

We are satisfied that the confessions of all tb.ese three accused were voluntary and rightly ·admitted into evidence. Each of the accused however retracted the confession made by him. Courts ordinarily consider it unsafe to convict any accused person on the basis of his retracted confession except where the truth of such confession is established by corroboration . in material particular by independent evidence, what is sufficient corroboration for this purpose has to be deoided iJ1 IYll Now/. KU111qr s .. ,, •f «•i•IJ!r&n .. I96B N.,,( Kumm s- •f IUJa••'"" s..c.,,.J. SUPREME OOURT REPORJ.'8 (1963] ea.ch oe.se on it.s own fa.ate and oiroumsta.nces.

It may, however, be generally stated that where the prosecution by the production of reliable evidence which is independent of the confession and which is also not tainted evidence like the evidence of an a.ocomplioe or the evidence of a oo-aocused, establishes the truth of certain parts of the account given in the confeBBion and these parts a.re so integrally connected with other parts of the accused's confess· ion, that a prudent judge of facts would think it reasonable to believe, in view of the established truth of these parts, that what the aocused has stated in tho confo•sion as r~gard3 his own participation in the crime is also true, that ia sufficient corroborati<m. 1\lore than this is not. needed, less than this is ordinarily insufficient.

Applying this test to the three retracted confessions before us, wo are satisfied that the High C·Jurt was right in its conclusion that ea.ch of these confe~sions has been so well corroborated by independent evidence in material particulars t.hat wha.t the accused has said in the confession a.s rega.rde his own participation in the crime has been proved to be true. Turning first to Nand Kumar'A oonfo~sion, we find tbat after describing how "iLh the other four accused p~rsons he went to Mange.I Bharti with a gun whioh belonged to one Fakhruddin and took pa.rt in the picnic with the 8 boys, Munna and hie companions there, goes on to say a.bout the conspiracy to rob these boys of their valuahles and then actually robbing them of these valuables. He further states in the confession how they further conspired to take all the boys "under the pretext of sight seeing walk (Sair ka.

Bahana) and saying them to rel\ch the city en-route Gundarai and Baru.khambha and to return their articles there and to murder them after taking them to some lonely place" took tb.e boys to Gundarai and there how one by one all the 8 boys were killed by himself. Kalua and Lakhan stabbing them with the knife which Murari had brought. He further · stated that after the boys had been murdered the booty was distributed among thr.mselves and he took in his share Munnas Agfa camera and a wrist .watch be!Onging to Munna. Not only has the prosecution established by independent. eviuence that Nand.

Kumar with the other accused went to Mangal Bharti and met the 8 boys there and remained with· them for some time taking part in the picnic, but it has fur: ther been proved by reliable and independent evidence that Munna's Agfa camera and the wrist watoh belonging to him which he had ta.ken with him that day to Mangal Bharti were reoovered from Naud Kumar's house and that it was actually he who produced these himself from behind the floor carpet on the Tand of his house and that he also produced some dotbes lying behind the floor carpet, viz , a white banian and a langot and a white shirt smear· ed with blood. There is satisfactory evidence ·that the blood on these articles was human blood. It is necessary to mention also that the fact that he had.knowledge of .where the dead bodies were, was d1Acovered by a statement made by him ~efore ~he police, which has been rightly admitted mto evidence under s.

27 of the Evidence Act and ' on the morning of June 6,.1960 it was he who took the po~ce party to the place where the bodies were. The kmfe, Ex. 18, was also pointed out by· him from under a bush near one of the dead bodies after he had previously stated that he had left the knife at the place of occurrence. These facts and cfrcumstances provide overwh?lming corroboration of Nand · Kumar's confe~s101:1 that he. 'YRS one of the three persons who mfl1cted the mjuries on the 8 boys which o~used their deaths. He has. therefore, beeJJ 196B ~anti Kumm 8'1'1te of Raja.than DIU (Jupta J. · SUPREME OOUR.T REPOltTd (1963] rightly convicted under s.302 of the Indian Penal Code. Kalua also confessed having been one of the three who inflicted knife injuries on scme of the boys and having held some of the other boys while hie companions, Nand Kumar and Lakhan inflicted the injuries.

Besides describing the visit to the Mangal Bharti and meeting the eight boys there he also spoke about robbing the boys of their belongings and thereafter about the conspiracy to kill the boys after taking them to Gundara.i. He went on to say in the confession how the boys were t..ken to Gundarai and murdered there. He further stated about the distribution of the booty and said that he go+, in hie share the wrist watch belonging to La.xmi and the ring on which the naruc of S.K. Gupta was written. Kalua.'e presence at the Mangal Bharti and meeting the eight boys there have been proved by independent evidence. It has also been eBtabliehed by reliable independent evidence that the wrist watch of Laxmi and also hie ring, which originally belonged to hie brother Sri Kiahan Gupta and so bore the inscription S. K. Gupta, were recovered from Kalua'e house and that it was Kalua himself who produced these from inside a box on a Tand in hia house and further that Kalua himself produced a trouser and a shirt from behind another box lying behind the same Tand both of which articles had blood marks.

It has been established satisfactorily that the blood was human blood. These faote and eironmeta.nces provide sufficient corroboration of Ka.Ina's confession. He has, therefore, been rightly convicted under e.302 of the Indian Penal Code. Murari also ep ike in hie confession of how he went to Manga.1 Bharti and met the eight boys; about the conspiracy to rob tho boys of their belongings and how they were actually robbed and there- Jftfl of tilt «ll•J>iis•y l!f taking the boJa to J 2 S.C.R • Gunda.rai aud killing them there. He a.lso spoke in his confession of bow after the boys were . taken to Gunda.rai forest the boys were ca.lied one by one and killed while be and Jagdiah remained guard over the boys when they were waiting for their turn to be called. He has. mentioned in . his confession about his ta.king his own knife with him and has also stated that this knife was used in com· mitting the murders.

Spee.king about the distribu- ~ · tion of the booty he sa.id that he got in his aha.re four buttons, one of . which was completely of gold . · while the. other • , three were gold toiJped. Independent evidence has established in addition to llforari's presence at Mangal Bharti and his meeting with the ~igbt beys there,; the recovery of four suoh buttons and Rs. 48/- in currency notes and tha.t it was Murari himself who produced these buttons and the notes from inside a box in his room after he himself ma.de a statement,- which wa.s rightly admitt-ed under s. 27 of the Evidence Act, about having kept these things in his house. The knife (Ex-18) which wa.s found near one ofthe dead bodies was also indentified by witness Ram Singh (P.W. 14) as the knife which he had seen Murari carrying before the occurrence. It is not an ordin1ry knife;

It· is a long knife of which the blade is 6 inches . long a.nd the handle 7 inches, with a special button arrangement on pressing which it opens and closes. Thes·e facts and circumstances established by independent evidence provide sufficient corroboration of Mura.d's own confession that in furtherance of a common intention of himself a.nd his ciompa.nions to kill these eight boys he kept gnard over the boys when one by one they were being called a.way and killed by,his companions, Na.nd Kumar, Kalua a.nd La.khan. He has, therefore, been rightly convicted 1'Uder 11.;IQ2 of the lndiau Penal Code,. IHI Nadir•""" 81411 of RaJ .. IAan D., GuptoJ. .. Na.nd_Kum1r State. oj Rajasthan L?a• Gupta J. ..--·1;:'_,.,..-- '>-: ,\ ' j. . · . The fourth appelb.n·~, Lakhan, did not confess having participated in any, of the crimes. · To prove the charge under s.302 of\ the Indian Penal Code against him the prosecution relied on a number of . circumstances. (1)

His presence with Nand Kumar •··and others at Mangal Bharti and meeting the eight . boys there; (2) the recovery from his room of part.of _the· booty ta_ken_ from the boys, viz., a gold ring bearing the inscription .R. P. Gupta, and· a wrist watch; (3) the recovery of a blood-stained banian and under-wear from his room and (4) the fact that these were producej by Lakhan himself after he had · made a statement that he kept these things in his house. Along with this the prosecution wants the court to take into consideration the statement made in the retracted confessions of Nand Kumar, Kalua ·_ and Murari that Lakhan took actual part in the killing of the eight boys. The circumstances mentioned above have clearly beon established by legal evidence and they themselves are almost sufficient, without anything more, to justify a conclusion that Lakhan took part in the killing of the eight boys in . . furtherance of the common intention of himself and . other to cause their deaths.

It is proper and quite permissible to take into consideration, then, the statements made as regards the part taken by him in the retracted confessions ofNand Kumar, Kalua and l'tiurari. These statoments supply whatever assurance was needed to convince the court that Lakhan took part in the killing of the eight boys in furtherance of the common intention of himself and others, His conviction under s.302, Indian Pen'll Code was, therefore, fully justified; Some argument was addressed · to us on the 1 question of motive. It has been urged that while _according to the confessions Nand Kumar and other decided to kill these boys so that they might not speak about the crimes already committed by J)le acrnstd, viz., clarnit;v and Hdl m;y, the lrnrpe(l judges of the High Court seemed to think that Munna was killed by Nand Kumar as an act of revenge for the insult he had offered to Nand Kumar's sister and the other seven boys were killed so that they might not speak ahout this murder of Munna.

The evidence in the present case is so clear to show that these four persons committed the murder of the eight .boys that we think it unnecessary to speculate about the motive which induced them to murder the eight boys who had done no harm. Whether it was sadistic pleasure or the fear of discovery of robbery, or anything else, the fact remains proved by overwhelming evidence that these four did actually commit the murder of the eight innocent boys: It is hardly necessary to say anything about the conviction of these persons of an offence under s. 395;:of the Indian Pena:I Code .. It is sufficient to mention only that the evidence d1soussed above in connection with the charge of murder provides sufficient basis for the convictions· under s. 395 of the Indian Penal Code. The sentences of dea~hpassedonNandKumar, Kalua and Lakhan are the only possible sentenoes. The High Court has thought fit to treat Murari more leniently and sentenced him only to imprisonment for life.

We cannot interfer with that sentence, even though it appears to _us that this leniency , was uncalled for. The appeal is dismissed. 1116Z NandKUmcu Slat•:oJ llaJas1"'2n a• GUJlla .t.